S. H. Kress & Co.

S. H KRESS & CO. S. H. Kress & Company and Tulsa General Drivers, Warehousemen and Helpers Union, Local No. 523 Affiliate of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 16-CA-3513 October 21, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On June 4, 1969, Trial Examiner Charles W. Schneider issued his Decision and June 16, 1969, his Supplemental Decision, in the above-entitled proceeding, finding that Respondent had engaged in and and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Trial Examiner's Decision and Trial Examiner's Supplemental Decision hereto attached. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and Supplemental Decision, and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has considered the Trial Examiner's Decision and his Supplemental Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that Respondent, S. H Kress & Company, Tulsa, Oklahoma, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE The Representation Proceeding' Upon petition filed under Section 9(c) of the National Labor Relations Act (29 U S C A. 159(c)) on February 'Official notice is taken of the record in the representation proceeding, Case 16-RC-4849 as the term "record" is defined in Section 102 68 and 102 69(f) of the Board's Rules (Rules and Regulations and Statements of Procedure, National Labor Relations Board, Series 8, as amended) See LTV Electrosystems, Inc, 166 NLRB No 81, enfd 388 F 2d 683 (C A 4, 1968), Golden Age Beverage Co. 167 NLRB No 24, Intertype Co v Penello, 269 F Supp 573 (D C Va 1967), Intertype Co v N L R B , 401 F 2d 41 (C A 4, 1968), Follett Corp , et al, 164 NLRB No 47, enfd 397 F 2d 91 (C A 7, 1968), Section 9(d) of the NLRA 225 23, 1968, by Tulsa General Drivers, Warehousemen and Helpers Union, Local No. 523, affiliate of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, a hearing was held on March 21, 1968, which resulted in the issuance, on March 29, 1968, by the Regional Director for Region 16, of a Decision and Direction of Election in an appropriate bargaining unit, described hereinafter, of the employees of S. H Kress & Company, herein called the Respondent Pursuant to the Decision and Direction of Election, an election by secret ballot was conducted by the Regional Director on May 10, 1968, among the employees in the appropriate unit to determine the question concerning representation Upon conclusion of the balloting, the parties were furnished a tally of ballots which showed that of approximately 28 eligible voters, 18 cast valid votes for and 9 cast valid votes against the Union, and 1 cast a void ballot. On May 15, 1968, Respondent filed timely objections to conduct affecting the results of the election in which it alleged (1) that during the campaign the Union had engaged in deliberate trickery and material misrepresentations by means of oral statements, campaign material, literature and other campaign media; (2) that the Union had circulated false and misleading information about the employer and had injected extraneous issues into its organizing campaign, (3) that the Union had coerced the employees to vote for the Union, and (4) that while the employees were voting, conditions occurred which prevented the employees from making a free and untrammeled choice in the election. On July 17, 1968, the Regional Director issued a Supplemental Decision and Certification of Representative, in which he stated that he had conducted an investigation of the objections, found that they did not raise any material or substantial issues affecting the results of the election, and overruled them in their entirety Finding that the Tally of Ballots showed that a majority of the valid votes had been cast for the Union, the Regional Director certified it as the exclusive bargaining representative of the employees in the appropriate unit On July 29, 1968, the Board extended the date for receipt of a Request for Review of the Regional Director's Supplemental Decision and Certification of Representative to August 12, 1968. Thereafter, on August 9, 1968, Respondent timely filed its Request for Review with the Board The Request for Review was denied by the Board on August 23, 1968 The Complaint Case On January 24, 1969, the Union filed the unfair labor practice charge involved in the instant case, in which it alleged that since on or about December 1, 1968, the Respondent has refused to bargain collectively with the Union On February 19, 1969, the General Counsel, by the Regional Director for Region 16, issued a Complaint and Notice of Hearing alleging that the Respondent had committed unfair labor practices in violation of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act, by refusing to bargain with the Union upon request In due course, on March 3, 1969, the Respondent filed its answer to the complaint in which certain allegations of the 179 NLRB No. 38 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complaint were admitted and others denied. In its Answer, the Respondent admits the following allegations of the complaint (1) filing and service of the charge, (2) certain jurisdictional facts, (3) that the Union is a labor organization within the meaning of Section 2(5) of the Act, (4) that the unit is appropriate, (5) that an election was held, (6) that the Union has requested the Respondent to bargain collectively, and (7) that the Respondent has refused and continues to refuse to bargain. Respondent denies the allegations contained in paragraphs 12, 16, 17, and 18 of the complaint to the effect (1) that the Union is the representative of the employees in the appropriate unit for purposes of collective bargaining, and (2) that by the refusal to bargain, the Respondent engaged in, and is engaging in unfair labor practices affecting commerce within the meaning of the Act. Respondent affirmatively asserts in its answer that (1) the election was invalid because the Union made certain substantial misrepresentations of material facts to the employees in the appropriate bargaining unit prior to the election and (2) that the certification is null and void as a matter of law since Respondent was denied a hearing on substantial issues of law and fact raised by its Objections to Conduct Affecting the Results of Election and its Request for Review of the Regional Director's Supplemental Decision and Certification of Representative. Under date of March 11, 1969, counsel for the General Counsel filed a Motion to Strike Portions of Respondent's Answer to Complaint and Motion for Judgement on the Pleadings in which he contends that the pleadings, considered together with the official Board record in the underlying representation proceeding, Case 16-RC-4849, raise no issues requiring a hearing, that Respondent's defense set forth in its answer raises no litigable questions of fact, and to the extent of the Motion to Strike is "sham" and "frivolous," concluding that as a matter of law Respondent has no valid defense to the complaint On March 13, 1969, I issued an Order to Show Cause returnable April 1, 1969 (subsequently extended to April 7), on the General Counsel's motions. The Respondent has filed a Response to the Order to Show Cause and a supporting brief. No other responses or briefs have been received. In its response and brief the Respondent opposes the Motion to Strike and the Motion for Judgement on the Pleadings. Specifically the Respondent asserts the validity of its answer It further states that its objections to the election were erroneously overruled, that it presented a prima facie case of interference with the election in substantial and material respects on which a hearing was required, that most, if not all the evidence relating to those objections is in the possession of the Union or of third parties over whom Respondent has no control; that since Respondent was not entitled to the power of subpoena prior to issuance of the complaint all such evidence was previously unavailable to the Respondent and that Respondent has now received some 40 subpenas to produce this evidence in the complaint proceedings. In addition the Respondent asserts that it has previously unavailable evidence (specifically union records) showing that "contrary to the Regional Director's findings, [and the Union's campaign literature] the Union charges more than $7 for dues." (Brief p. 12) On May 8, 1969, I issued an Order affording the Respondent opportunity to submit further information from which I could determine whether there is new evidence requiring hearing Specifically I wished to know whether the Respondent was asserting the existence of evidence contradicting a finding of the Regional Director to the effect that there was no evidence that the Union charged more than $7 per month dues. The order suggested the submission of copies of union records as to the facts, or (if those were not in Respondent's possession) a statement by Counsel as to the basis for their belief that the records would disclose such facts. Additionally the order suggested the submission of a statement as to whether the evidence was in existence at the time of filing the objections and if so why it could not have been discovered then with the exercise of due diligence No response has been received to that order. RULING ON MOTION FOR SUMMARY JUDGMENT As has been seen, the Respondent's basic position is that the representation case was wrongly decided and that the Respondent is entitled to a hearing on its objections. It is established Board policy, in the absence of newly discovered or previously unavailable evidence, not to permit litigation before a Trial Examiner in a complaint case of issues which were or could have been litigated in a prior related representation proceeding.' This policy is applicable even though no formal hearing on objections has been provided by the Board Such a hearing is not a matter of right unless substantial and material issues are raised.' The Board denied the Respondent's request for review of the Regional Director's determination that the Respondent's objections to the election were without merit, and his certification of the Union In this connection the Board said that the request for review raised "no substantial issues." Those conclusions are binding on the Trial Examiner. As has been seen, though afforded opportunity to do so, the Respondent did not submit information necessary for me to find that the Respondent has previously unavailable evidence to support its contention that the Union misrepresented the amount of union dues. Though the Respondent also asserts that union records supporting some of its other objections were not previously available because they were in the possession of the Union, no showing is made as to what that evidence consists of, or what specifically the Respondent believes it will show. Thus it cannot be concluded that the Respondent has material and substantial previously unavailable evidence warranting hearing now on its objections, or grounds for belief that such evidence exists. The remaining material facts being uncontested or established, there are no unresolved matters requiring hearing, and the General Counsel's Motion for Judgment on the Pleadings is granted. However, the General 'Krieger-Ragsdale & Co. Inc, 159 NLRB 490, enfd 379 F 2d 517, (C A 7, 1967), cert denied 389 U S 1041, N L R B v Macomb Pottery, 376 F 2d 450 (C A 7, 1967), Howard Johnson Company. 164 NLRB No 121, Metropolitan Life Insurance Company, 163 NLRB No 71 See Pittsburgh Plate Glass Co. v N L R B. 313 U S 146, 162 (1941), NLRB Rules and Regulations, Section 102 67(f) and 102 69(c) 'O K Van and Storage. Inc. 127 NLRB 1537, enfd 297 F 2d 74 (C A 5, 1961) See Air Control Window Products. Inc, 355 F 2d 245, 249 (C A 5, 1964) "If there is nothing to hear, than a hearing is a senseless and useless formality " See also N L R B v. Bata Shoe Co . 377 F 2d 821, 826 (C A 4, 1967) " there is no requirement, constitutional or otherwise, that there be a hearing in the absence of substantial and material issues crucial to determination of whether NLRB election results are to be accepted for purposes of certification " S H. KRESS & CO. Counsel's Motions to Strike Portions of Respondent's Answer as sham is denied. The portions of the Answer referred to deny the validity of the overruling of the Respondent's objections to the election and thus the validity of the certification The basis for the General Counsel's Motion to Strike is essentially that those issues were determined in the representation case and may not be relitigated The General Counsel's premises as to relitigation are of course sound, as we have seen, but it does not follow that the Respondent's denial of the validity of the determinations in the representation case is "sham" or "frivolous." Such denials are essential to review of the determinations, for without them the Respondent would have no issue to contest before the Board or the Courts On the basis of the record I make the following further FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT S. H. Kress & Company, the Respondent is, and has been at all times material herein, a corporation duly organized under and existing by virtue of the laws of the State of New York, having its principal offices in New York City, New York, and operating a chain of variety stores in several States of the United States, including the State of Oklahoma. The only location involved in this proceeding is the Respondent's warehouse complex at 4953 South 48th West Avenue, Tulsa, Oklahoma. In the course and conduct of its business operations, during the past 12-month period, which is representative, the Respondent purchased goods and materials valued in excess of $50,000 from outside the State of Oklahoma which were transferred to its warehouses in the State of Oklahoma directly from other states of the United States. During this same period of time, the Respondent's gross volume of retail sales exceeded $500,000 value. Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Ii. THE LABOR ORGANIZATION INVOLVED The Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act Iii THE UNFAIR LABOR PRACTICES The following employees of the Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. All employees working in the Respondent's warehouses located at 4953 South 48th West Avenue, Tulsa, Oklahoma, and excluding office clerical employees, professional employees, watchmen, guards, and supervisors as defined in the Act. On May 10, 1968, a majority of Respondent's employees in the said unit designated and selected the Union as their collective bargaining representative in a secret ballot election conducted under the supervision of the Regional Director for Region 16 of the National Labor Relations Board. On July 17, 1968, the Regional Director certified the Union as the exclusive collective bargaining representative of the employees in the appropriate unit. Respondent's request that the Board review the Regional Director's certification was denied on 227 August 28, 1968. At all times since July 17, 1968, and continuing to the present, the Union has been the representative for the purpose of collective bargaining of the employees in the said unit, and by virtue of Section 9(a) of the Act has been, and is now, the exclusive representative of the employees in said unit for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment and other terms and conditions of employment. It is admitted and found that on or about October 15, 1968, the Union requested the Respondent to meet with it for the purpose of collective bargaining with respect to the employees in the appropriate unit, and that on or about December 1, 1968, Respondent refused and continues to refuse to do so. By thus refusing to bargain collectively with the Union the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and (5) and 2(6) and (7) of the Act. Upon the foregoing findings and conclusions and the entire record in the case, I recommend that the Board issue the following ORDER A For the purpose of determining the duration of the certification the initial year of certification shall be deemed to begin on the date the Respondent commences to bargain in good faith with the Union as the recognized exclusive bargaining representative in the appropriate unit ' B. S. H. Kress & Company, its officers, agents, successors and assigns shall: 1 Cease and desist from: (a) Refusing to bargain collectively with Tulsa General Drivers, Warehousemen and Helpers Union, Local No 523, affiliate of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of the employees in the following appropriate bargaining unit All employees working in the Respondent's warehouses located at 4953 South 48th West Avenue, Tulsa, Oklahoma, and excluding office clerical employees, professional employees, watchmen, guards, and supervisors as defined in the Act. (b) Interfering with the efforts of said Union to negotiate for or represent employees as such exclusive collective bargaining representative. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act (a) Upon request bargain collectively with Tulsa General Drivers, Warehousemen and Helpers Union, Local No. 523, affiliate of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of the employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and embody in a signed agreement any understanding reached. 'The purpose of this provision is to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law See Mar-Jac Poultry Co , Inc , 136 NLRB 785, Commerce Co dlbla Lamar Hotel, 140 NLRB 226, 229, 328 F 2d 600 (C A 5), cert denied 379 U S 817 ( 1964), Burnett Construction Co, 149 NLRB 1419, 1421, 350 F 2d 57 (C A 10, 1965) 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Post at its office and place of business at the Tulsa, Oklahoma warehouses, copies of the notice attached hereto marked "Appendix."5 Copies of said notice, on forms to be furnished by the Regional Director for Region 16, shall, after being duly signed by an authorized representative of the Respondent, be posted by the Respondent immediately upon receipt thereof and be maintained by it for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 16, in writing, within 20 days from receipt of this recommended Order what steps the Respondent has taken to comply herewith 6 the appropriate unit and if an understanding is reached we will sign a contract with the Union Dated By S. H. KRESS & COMPANY (Employer) (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material Any questions concerning this notice may be directed to the Board's Regional Office, 8A24 Federal Office Building, 819 Taylor Street, Fort Worth, Texas, Telephone 817-334-2921 SUPPLEMENTAL TRIAL EXAMINER'S DECISION 'In the event this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " 'In the event these recommendations are adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 16, in writing, within 10 days from receipt of this Order what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that WE WILL NOT refuse to bargain collectively with Tulsa General Drivers, Warehousemen and Helpers Union, Local No 523, affiliate of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive collective bargaining representative of all our following employees All employees working in our warehouses located at 4953 South 48th West Avenue, Tulsa, Oklahoma, and excluding office clerical employees, professional employees, watchmen, guards, and supervisors as defined in the Act. WE WILL NOT interfere with the efforts of the Union to negotiate for or represent employees as exclusive collective-bargaining representative, or in any like or related manner interfere with employee efforts at bargaining WE WILL bargain collectively with the Union as exclusive bargaining representative of the employees in On June 4, 1969, a Trial Examiner's Decision issued in this case and on the same day the case was transferred to the Board. In the Decision, section entitled "The Complaint Case," ninth paragraph, it was stated that no response had been received to the Trial Examiner's Order of May 8, 1969, entitled "Order Concerning Asserted Previously Unavailable Evidence," which order afforded the Respondent opportunity to submit further information from which it could be determined whether there was new evidence requiring hearing. On June 6, 1969, the Respondent filed a motion with the Board requesting that the case be remanded to the Trial Examiner for reconsideration of his decision, on the ground that as the result of clerical error Respondent's Response to the Order of May 8 had not been served on the Trial Examiner. On June 10, 1969, the Board granted the Respondent's motion and remanded the proceeding to the Trial Examiner for reconsideration of his Decision in the light of said Response, and for the issuance of a Supplemental Decision. I have reconsidered the Trial Examiner's Decision in the light of the Respondent's Response to the order of May 8, 1969, and have concluded that the Response does not disclose that the Respondent has any new evidence which was not previously submitted in the representation proceeding. Nor does the Response, in my judgment, disclose reasonable ground to conclude that new evidence exists The Response is essentially a reiteration of the Respondent's contentions previously presented to the Regional Director and to the Board, based upon the evidence which the Respondent presented to the Regional Director The Respondent has not therefore, in my opinion, shown probable existence of newly discovered or previously unavailable evidence warranting hearing. There being no apparent material issue litigable before a Trial Examiner, the findings, conclusions, and recommendations contained in the Trial Examiner's Decision of June 4, 1969, are reaffirmed